United States v. Patrick McGuire

835 F.3d 756, 2016 U.S. App. LEXIS 16063, 2016 WL 4527557
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 30, 2016
Docket15-2071
StatusPublished
Cited by6 cases

This text of 835 F.3d 756 (United States v. Patrick McGuire) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Patrick McGuire, 835 F.3d 756, 2016 U.S. App. LEXIS 16063, 2016 WL 4527557 (7th Cir. 2016).

Opinions

SYKES, Circuit Judge.

Patrick McGuire pleaded guilty to a single count of interfering with commerce by threat or violence. At sentencing the district court classified McGuire as a career offender under § 4Bl.l(a) of the Sentencing Guidelines, which increases the offense level if the defendant has two prior felony convictions for a “crime of violence.” U.S.S.G. § 4Bl.l(a) (2014). “Crime of violence” is defined in § 4B1.2 and includes “any offense ... that ... is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 4B1.2(a)(2) (emphasis added). The emphasized text is known as the residual clause.

The district judge counted two of McGuire’s prior convictions as crimes of violence, one of which — a conviction for fleeing the police — qualified only under the residual clause. With the career-offender enhancement in the mix, McGuire’s Guidelines range increased from 63-78 months to 151-188 months. Citing McGuire’s extensive criminal history, the judge imposed a 188-month sentence. In doing so she noted her surprise that the government hadn’t asked for the statutory maximum sentence of 20 years.

McGuire appeals, arguing that in light of Johnson v. United States, — U.S.-, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), the residual clause in the career-offender guideline is unconstitutionally vague. The government agrees and confesses error. In a recent decision circulated to the full court under Circuit Rule 40(e), we also agreed and invalidated § 4B1.2(a)(2)’s residual clause as unconstitutionally vague. United States v. Hurlburt, No. 14-3611, 835 F.3d 715, 2016 WL 4506717 (7th Cir. Aug. 29, 2016) (en banc).

Applying Hurlburt here, McGuire was wrongly classified as a career offender. As in most cases involving miscalculation of a defendant’s Guidelines range, that error warrants full resentencing.

I. Background

McGuire pleaded guilty to one count of interfering with commerce by threat or violence, which carries a 20-year maximum sentence. See 18 U.S.C. § 1951. At sentencing the judge classified McGuire as a career offender based on two prior felony convictions for crimes of violence. See U.S.S.G. § 4B1.1. As relevant here, one of the predicates for the career-offender enhancement — a conviction for fleeing the [759]*759police — qualified under the residual clause of the erime-of-violence definition in § 4B1.2(a)(2). Applying the enhancement substantially increased McGuire’s Guidelines sentencing range, which jumped from 63-78 months to 151-188 months.

The government asked for a sentence at the high end of the range, and the judge agreed that McGuire’s extensive criminal history warranted at least that:

But, if anything, I think all of the defense arguments in mitigation, they certainly don’t call for anything below the [Gjuidelines range. And I’m actually a little surprised that the government isn’t seeking the statutory maximum in this case because I think they would have all the argument for why that is appropriate.1

The judge sentenced McGuire to 188 months in prison and 3 years of supervised release.

II. Discussion

McGuire argues that the residual clause in the career-offender guideline is unconstitutionally vague in light of the Supreme Court’s decision in Johnson. Ordinarily our review would be de novo. United States v. Boatman, 786 F.3d 590, 593 (7th Cir. 2015). But McGuire did not raise this challenge at sentencing, so plain-error review applies instead. United States v. Jenkins, 772 F.3d 1092, 1096 (7th Cir. 2014). That standard requires McGuire to establish “(1) an error or defect (2) that is clear or obvious (3) affecting the defendant’s substantial rights (4) and seriously impugning the fairness, integrity, or public reputation of the judicial proceedings.” Id. at 1097 (quotation marks omitted).

In Johnson the Supreme Court invalidated the residual clause in the Armed Career Criminal Act as unconstitutionally vague. 135 S.Ct. at 2563. The residual clause in the career-offender guideline is identical. The government agrees that Johnson’s holding applies to § 4B1.2(a)(2)’s residual clause and therefore confesses error in McGuire’s case.

In our recent decision in United States v. Hurlburt, No. 14-3611, we accepted the government’s concession and overruled our circuit precedent in United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012), which held that the Sentencing Guidelines are immune from vagueness challenges. 835 F.3d 715, 718, 724-25, 2016 WL 4506717, (7th Cir. Aug. 29, 2016) (en banc). Applying Johnson, we held that the residual clause in the career-offender guideline is unconstitutionally vague.2 Id.

Hurlburt resolves the central issue in this case. Relying on an unconstitutional guideline to calculate McGuire’s Guidelines range is plain error. See Henderson v. United States, — U.S. -, 133 S.Ct. 1121, 1130, 185 L.Ed.2d 85 (2013) (explaining that “whether a legal question was settled or unsettled at the time of trial, ‘it is enough that an error be plain at the time of appellate consideration’ ” (quoting Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997))).

The question ' remains whether the Johnson error “affected [McGuire’s] substantial rights.” United States v. Good[760]*760win, 717 F.3d 511, 520 (7th Cir. 2013). To satisfy the prejudice requirement of plain-error review, a defendant typically must “ ‘show a reasonable probability that, but for the error,’ the outcome of the proceeding would have been different.” Molina-Martinez v. United States, — U.S.-, 136 S.Ct. 1338, 1343, 194 L.Ed.2d 444 (2016) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 76, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). “When a defendant is sentenced under an incorrect Guidelines range[,] ... the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” Id. at 1345 (emphasis added).

There’s no question that McGuire was sentenced under an incorrect Guidelines range: Without the career-offender enhancement, McGuire’s range drops from 151-188 months to 63-78 months. That’s obviously a substantial difference, and McGuire asks us to remand for full resen-tencing. Here’s where the parties’ positions diverge.

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Bluebook (online)
835 F.3d 756, 2016 U.S. App. LEXIS 16063, 2016 WL 4527557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-patrick-mcguire-ca7-2016.